Citation Nr: 1018494
Decision Date: 05/18/10 Archive Date: 06/04/10
DOCKET NO. 07-34 076 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to service connection for the cause of the
Veteran's death.
REPRESENTATION
Appellant represented by: Florida Department of Veterans
Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Stephanie L. Caucutt, Associate Counsel
INTRODUCTION
The Veteran served on active duty from December 1941 to
January 1972; he died in April 2006. The appellant is his
surviving spouse.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 2007 rating determination of a
Regional Office (RO) of the Department of Veterans Affairs
(VA) in St. Petersburg, Florida. The issue before the Board
today was remanded in December 2008 for further evidentiary
and procedural development. As discussed below, the Board
finds that there was substantial compliance with its remand;
thus, it may proceed with a decision at this time. See
Stegall v. West, 11 Vet. App. 268 (1998).
The appellant testified before the undersigned Veterans Law
Judge in November 2008; a transcript of that hearing is
associated with the claims folder.
Please note this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
FINDINGS OF FACT
1. The Veteran died in April 2006; the underlying cause of
death listed on his death certificate is metastatic colon
cancer; chronic obstructive pulmonary disease (COPD) is
listed as a contributory cause of death.
2. At the time of the Veteran's death, service connection
was not established for metastatic colon cancer or COPD.
3. The competent evidence fails to demonstrate that the
causes of death listed on the Veteran's death certificate
were incurred in or related to his military service, to
include exposure to any chemical toxins, asbestos, or an
herbicide agent.
4. The competent evidence does not establish that a service-
connected disability, including calcified granuloma of the
left apex, was the immediate or underlying cause of the
Veteran's death, nor was a service-connected disability
etiologically related to the cause of the Veteran's death,
nor did a service-connected disability hasten death.
CONCLUSION OF LAW
The criteria for entitlement to service connection for the
cause of the Veteran's death have not been met. 38 U.S.C.A.
§§ 1110, 1112, 1116, 1131, 1137, 1310, 5107 (West 2002 &
Supp. 2009); 38 C.F.R. §§ 3.300, 3.303, 3.307, 3.309,
3.312(a), 3.313 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
VA's Duties to Notify and Assist
Under the Veterans Claims Assistance Act (VCAA), when VA
receives a complete or substantially complete application for
benefits, it must (1) notify the claimant of the information
and evidence not of record that is necessary to substantiate
a claim, (2) which information and evidence VA will obtain,
(3) and which information and evidence the claimant is
expected to provide. 38 U.S.C.A. § 5103(a) (West 2002 &
Supp. 2009); 38 C.F.R. § 3.159 (2009).
In addition, the United States Court of Appeals for Veterans
Claims (Court) has prescribed more specific notice
requirements for claims for dependency and indemnity
compensation (DIC) based on whether a veteran was service-
connected for a disability during his or her lifetime. Hupp
v. Nicholson, 21 Vet. App. 342 (2007). Specifically, 38
U.S.C.A. § 5103(a) notice for a DIC case must include (1) a
statement of the conditions, if any, for which a veteran was
service connected at the time of his or her death, (2) an
explanation of the evidence and information required to
substantiate a DIC claim based on a previously service-
connected condition, and (3) an explanation of the evidence
and information required to substantiate a DIC claim based on
a condition not yet service connected. Id.
The Board finds that a December 2008 letter partially
satisfied VA's duty to notify provisions under the VCAA and
Hupp. 38 U.S.C.A. § 5103(a); 38 C.F.R.
§ 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187
(2002). In this regard, this letter advised the appellant
what information and evidence was needed to substantiate her
claim for the cause of the Veteran's death. More
specifically, it notified her that she must either "[show]
that the [V]eteran's service[-]connected conditions caused or
contributed to [his] death," or "[show] a reasonable
probability that the condition that contributed to the
[V]eteran's death was caused by injury or disease that began
during service." See VCAA Letter dated in December 2008.
It also informed the appellant about what information and
evidence must be submitted by her, including enough
information for the RO to request records from the sources
identified by the appellant, as well as what information and
evidence would be obtained by VA, namely, records like
medical records, employment records, and records from other
Federal agencies.
Although the December 2008 VCAA letter was sent to the
appellant after the initial adjudication of her claim, the
Board finds there to be no error because any potential
prejudice to the appellant was rendered harmless. In this
regard, she was provided an additional opportunity to submit
evidence and argument in support of her claim following
receipt of the December 2008 letter and the claim was
readjudicated in a February 2010 supplemental statement of
the case. See Pelegrini, 18 Vet. App. at 120; Mayfield v.
Nicholson, 20 Vet. App. 537 (2006) (a (supplemental)
statement of the case that complies with all applicable due
process and notification requirements constitutes a
readjudication decision).
The Board acknowledges that neither the December 2008 letter,
nor any other VCAA letter sent to the appellant throughout
this appeal provided her with a statement as to the
conditions, if any, for which the Veteran was service-
connected at the time of his death in accordance with its
December 2008 remand. See also Hupp v. Nicholson, 21 Vet.
App. 342 (2007). Generally, the Board is obligated by law to
ensure that the RO complies with its directives, and where
the remand orders of the Board are not complied with, the
Board errs as a matter of law when it fails to ensure
compliance. Stegall v. West, 11 Vet. App. 268 (1998).
In the present case, the Board may proceed with this appeal
despite the agency of original jurisdiction's failure to
comply with the December 2008 remand directives because there
is no indication that the notice deficiency caused by this
error resulted in prejudicial harm to the appellant. See
Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Mayfield v.
Nicholson, 19 Vet. App. 103 (2005). Specifically, statements
made by the appellant during this appeal reflect that she was
aware that the Veteran was in receipt of service connection
for calcified granuloma of the lung as she contends that this
may have been related to COPD which contributed to cause his
death. See Mayfield, 19 Vet. App. at 121, rev'd on other
grounds, Mayfield v. Nicholson, 444 F. 3d 1328 (Fed. Cir.
2006) (VA can demonstrate that a notice defect is not
prejudicial if it can be demonstrated ... that any defect in
notice was cured by actual knowledge on the part of the
appellant). As for the Veteran's remaining service-connected
disabilities, the appellant has not contended, and the
evidence of record does not indicate, that the Veteran's
service-connected fracture residuals in any way led to his
death. Furthermore, it is difficult to comprehend how the
appellant having knowledge of these service-connected
disabilities would change her contentions. Thus, it appears
that the adjudication was essentially fair and the appellant
was given sufficient opportunity to present evidence and
argument in support of her claim. See Dunlap v. Nicholson,
21 Vet. App. 112, 118 (2007).
Turning to VA's duty to assist, the Board finds that VA has
fulfilled its duty to assist the appellant in making
reasonable efforts to identify and obtain relevant records in
support of her cause of death claim. 38 U.S.C.A. § 5103A(a).
In fulfilling the Board's December 2008 remand directives,
treatment records from W. Florida Hospital and Pensacola
Naval Hospital have been associated with the claims file.
The Veteran's service treatment records and all relevant VA
and non-VA treatment records since the Veteran's discharge
from service in 1972 are also of record. The appellant has
not identified any additional relevant, outstanding records
that need to be obtained before deciding her claim.
In addition to the above development, a medical opinion was
requested in conjunction with the appellant's cause of death
claim addressing the contentions raised by her and the
evidence of record. The December 2009 VA opinion reflects
consideration of the evidence contained in the Veteran's
claims file as well as application of medical principles to
the issue of whether the Veteran's contributory cause of
death, COPD, was incurred during or otherwise related to
military service. Such opinion is therefore deemed adequate
and no further development is necessary. See Barr v.
Nicholson, 21 Vet. App. 303, 311 (2007).
Under the circumstances of this case, "the record has been
fully developed," and it is difficult to discern what
additional guidance VA could have provided to the appellant
regarding what further evidence she should submit to
substantiate her claims. Conway v. Principi, 353 F.3d 1369
(Fed. Cir. 2004). Furthermore, as discussed above, the Board
finds that there has been substantial compliance with its
December 2008 remand directives. See Stegall v. West, 11
Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet.
App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47
(1999). Therefore, the Board is satisfied that VA has
complied with the duty to assist requirements of the VCAA and
the implementing regulations and the record is ready for
appellate review.
Analysis
The appellant is claiming entitlement to service connection
for the cause of the Veteran's death. See 38 U.S.C.A. § 1310
(West 2002 & Supp. 2009). The cause of a veteran's death
will be considered to be due to a service-connected
disability when the evidence establishes that such disability
was either the principal or a contributory cause of death.
38 C.F.R. § 3.312(a) (2009). This question will be resolved
by the use of sound judgment, without recourse to
speculation, after a careful analysis has been made of all
the facts and circumstances surrounding the death of the
veteran, including, particularly, autopsy reports. Id. For
a service-connected disability to be considered the principal
or primary cause of death, it must singly, or with some other
condition, be the immediate or underlying cause, or be
etiologically related thereto. 38 C.F.R. § 3.312(b).
The Veteran's original death certificate, completed in April
2006, lists the immediate cause of death as arrhythmia due to
acute renal failure due to metastatic colon cancer. In
October 2006, an amendment was made to the Veteran's death
certificate, adding chronic obstructive pulmonary disease
(COPD) as a "contributing cause of death." At the time of
his death in April 2006, the Veteran was not service-
connected for either metastatic colon cancer or COPD.
Rather, service connection was in effect for residuals of a
right index finger fracture, residuals of a right thumb
fracture, residuals of a distal left fibula fracture, and a
calcified granuloma of the left apex, all rated as
noncompensable (zero percent disabling).
The appellant has contended throughout this appeal that
service connection is warranted for the Veteran's death
because the contributory cause of death listed on his amended
death certificate, COPD, is the result of his military
service, to include as a result of exposure to asbestos,
herbicide agents, gunfire smoke, photoprocessing chemicals,
and/or frostbite of the lungs (which resulted in his service-
connected calcified granuloma of the left apex). In addition
to the appellant's own lay theories, the Board has considered
those raised by the evidence of record, including whether
service connection is warranted for COPD as a result of
tobacco use and/or nicotine dependence acquired during
service. See Robinson v. Mansfield, 21 Vet. App. 545, 553
(2008) (the VA must consider all possible theories of
entitlement raised by the claimant or the evidence of
record). On the other hand, further analysis has not been
provided as to whether the underlying cause of the Veteran's
death, i.e., colon cancer, is service-related and/or whether
service-connected fracture residuals of the right hand and
left fibula caused or contributed to cause the Veteran's
death, because such theories of entitlement were neither
specifically contended by the appellant nor raised by the
evidence of record. See id.
Pertinent VA law and regulations provide that service
connection may be granted for a disability resulting from
disease or injury incurred in or aggravated by service.
38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303
(2009). Generally, this requires (1) the existence of a
present disability; (2) in-service incurrence or aggravation
of a disease or injury; and (3) a causal relationship between
the present disability and the disease or injury incurred or
aggravated during service. Shedden v. Principi, 381 F.3d
1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303(d).
Alternatively, service connection may be established either
by showing that a chronic disability or disease was incurred
during service and later manifestations of such chronic
disability or disease are not due to intercurrent cause(s) or
that a disorder or disease was incurred during service and
there is evidence of continuity of symptomatology which
supports a finding of chronicity since service. 38 C.F.R.
§ 3.303(b).
In addition to asserting that the Veteran's COPD manifested
during his active duty service, the appellant also contends
that this disease is the result of the Veteran's exposure to
herbicide agents while serving in Vietnam. Under legally-
defined circumstances, certain diseases shall be service-
connected if a veteran was exposed to an herbicide agent
during a specified period of active military, naval, or air
service. 38 U.S.C.A. § 1116 (West 2002 & Supp. 2009); 38
C.F.R. § 3.309(e) (2009). COPD is not a disease which
qualifies for this legal presumption. See 38 C.F.R.
§§ 3.307(a), 3.309(e) (2009). Service connection may still
be established, however, if it is determined under 38
U.S.C.A. § 1110 and 38 C.F.R. § 3.303 that COPD is the result
of herbicide exposure experienced during active military,
naval, or air service. See Combee v. Brown, 34 F.3d 1039,
1043-1044 (Fed. Cir.1994).
Initially, the Board observes that the Veteran's service
treatment records reflect that he was seen throughout his
twenty-nine years of active duty service for a number of
upper respiratory infections, two bouts of pneumonitis, and
three cases of bronchitis. With regard to bronchitis, the
Board acknowledges that the last case of bronchitis, which
occurred in November 1969, reflects a diagnosis of "chronic
bronchitis."
Such evidence would tend to suggest that the Veteran was
diagnosed with COPD during active duty service, thereby
entitling him to service connection, because "chronic
bronchitis" is a type of COPD. See Dorland's Illustrated
Medical Dictionary, 253 (30th ed. 2003). However, remaining
service treatment records and the Veteran's September 1971
service retirement examination are silent for any diagnosis
of chronic bronchitis or COPD. Similarly, no clinical
abnormalities of the lung were noted and a chest x-ray was
negative for any significant findings at separation. Thus,
it is not clear whether the Veteran was diagnosed with
chronic bronchitis (and thus, COPD) during his active duty
service. See 38 C.F.R. § 3.303(b) ("[f]or the showing
chronic disease in service there is required a combination of
manifestations sufficient to identify the disease entity, and
sufficient observation to establish chronicity at the time,
as distinguished from merely isolated findings or a diagnosis
including the word 'Chronic.'" (emphasis added)).
The Board finds that the competent evidence of record does
not establish that chronic bronchitis/COPD first manifested
during the Veteran's active duty service. While it
acknowledges that the Veteran, prior to his death, and the
appellant, during this appeal, both assert that he was
diagnosed with chronic bronchitis/COPD during active duty
service, neither of them are competent to state that the
bronchitis experienced during active duty service constituted
chronic bronchitis or COPD because this information is not of
the sort that is readily observable to a lay person. See
Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007);
Layno v. Brown, 6 Vet. App. 465, 469 (1994). Similarly, the
Board is prohibited from making its own conclusions regarding
whether chronic bronchitis/COPD manifested during service.
See Colvin v. Derwinski, 1 Vet. App. 171 (1991).
The only competent evidence of record which directly
addresses this issue is a December 2009 VA opinion in which a
VA clinician, having reviewed the Veteran's claims file,
concluded that there is no evidence of COPD, chronic
bronchitis, or emphysema in the Veteran's service treatment
records. As explained in the December 2009 opinion, the
acute upper respiratory infections, pneumonia, and bronchitis
experienced by the Veteran over three decades of service do
not show a pattern of chronic bronchitis or COPD, but,
rather, acute infection consistent with natural exposure.
Moreover, the opinion notes that smokers often have more
frequent acute infections, and the Veteran's post-service
treatment records reflect that he had a forty-year history of
smoking which overlapped with his entire period of active
duty service. The Board will rely on the December 2009
opinion in determining that chronic bronchitis/COPD did not
initially manifest during the Veteran's active duty service
because this opinion is based on a complete review of his
claims file and provides a rationale which reflects
application of medical principles to the specific facts found
in the record. See Nieves-Rodriguez v. Peake, 22 Vet. App.
295, 304 (2008); see also Hayes v. Brown, 5 Vet. App. 60, 69-
70 (1993) (it is the responsibility of the Board to assess
the credibility and weight to be given the evidence) (citing
Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)).
Although the Board concludes that COPD/chronic bronchitis did
not manifest during the Veteran's active duty service,
service connection may still be warranted if it can be shown
that a causal relationship exists between COPD at the time of
the Veteran's death and active duty service. Shedden, 381
F.3d at 1167; 38 C.F.R. § 3.303(d). As discussed in more
detail below, the competent evidence fails to show that a
causal relationship exists between COPD diagnosed post-
service and any event, injury, or disease during service,
including any exposure to asbestos, herbicide agents, gunfire
smoke, photoprocessing chemicals, and/or frostbite of the
lungs.
As an initial matter, the evidence of record does not
categorically establish that the Veteran was exposed to
asbestos, herbicide agents, gunfire smoke, photoprocessing
chemicals, and/or frostbite of the lungs during his active
duty service. However, with the exception of herbicide
agents, his service records contain sufficient evidence to
support the lay assertions of record. See 38 U.S.C.A.
§ 1154(a) (West 2002) (due consideration must be given to the
places, types, and circumstances of a veteran's service). In
this regard, the Veteran served aboard a number of naval
ships during the 1950s when asbestos was frequently used to
insulate heating pipes. Personnel records also reveal that
the Veteran worked as a photographer throughout service,
including on aircraft. Finally, his separation document
contains evidence of service in Antarctica. In the absence
of any evidence to the contrary, the Board will accept the
lay evidence of these exposures as credible. See Hayes, 5
Vet. App. at 69-70.
As for exposure to herbicide agents, the Veteran did receive
the Vietnam Service Medal and Vietnam Campaign Medal;
however, there is no evidence other than lay statements which
establishes that he served in-country and was therefore
exposed to herbicide agents. See Haas v. Peake, 525 F.3d
1168 (Fed. Cir. 2008) (upheld VA's requirement that a
claimant must have been present within the land borders of
Vietnam at some point in the course of his or her military
duty in order to be entitled to the presumption of herbicide
exposure under 38 U.S.C. § 1116(a)(1) and 38 C.F.R. §
3.307(a)(6)(iii)); see also 38 C.F.R. §§ 3.307(a)(6),
3.313(a). Nevertheless, further development to verify
whether the Veteran was exposed to herbicides during service
is not necessary because, as discussed below, none of the
competent evidence of record indicates that COPD is the
result of such exposure. Similarly, the Board need not
consider whether the Veteran's lay statements of record
regarding exposure to an ammunition explosion while serving
in Vietnam are credible because the competent evidence does
not even suggest a relationship between such event and COPD.
As discussed above, the Veteran was seen throughout service
for numerous bouts of upper respiratory infection,
pneumonitis, and bronchitis. The first evidence of COPD,
however, is not for more than four years after the Veteran's
separation. Specifically, he was seen in May 1976 with
complaints of dyspnea on exertion and chronic cough.
Pulmonary function tests (PFTs) were performed in July 1976
which revealed mild restrictive disease and severe
obstructive disease. A March 1977 annual physical report
contains a diagnosis of early COPD. Medical records show
continued treatment thereafter for chronic bronchitis,
emphysema, and COPD. It is notable to point out that while
the Veteran complained of dyspnea on exertion, chest
congestion, and cough during service, his complaints did not
reflect a chronic history of these problems. In fact, the
Veteran expressly denied a subjective history of chronic
cough, pain or pressure in the chest, or shortness of breath
shortly before service separation. Annual Examination Report
dated in April 1969. Additionally, the appellant testified
in November 2008 that she did not recall the Veteran
complaining of breathing problems at his retirement, although
she noted that he was not the kind of person to complain
about such things.
The above evidence tends to suggest that the Veteran's COPD
did not develop until approximately four years after his
separation from service. Moreover, it does not appear that
the Veteran reported a history of such chronic problems
beginning in service. Such evidence weighs against a finding
that COPD is causally related to the Veteran's active duty
service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir.
2000), aff'g sub nom. Maxson v. West, 12 Vet. App. 453, 459
(1999).
As above, the Board cannot accept the Veteran's or
appellant's lay assertions of a causal relationship as
competent evidence because this determination requires
medical expertise and knowledge which neither possess. See
Jandreau, 492 F.3d at 1377; Layno, 6 Vet. App. at 469. Once
again the only competent evidence directly addressing the
issue of a causal relationship is the December 2009 VA
opinion. As previously discussed, the VA clinician, having
reviewed the claims file, found that there is no evidence of
COPD, chronic bronchitis, or emphysema in service. Relevant
to this portion of the analysis, the December 2009 VA
clinician also concluded that the Veteran's advanced pancihar
emphysema with chronic bronchitis (COPD) is not related to
any event, injury, or disease incurred during service,
including acute bronchitis or exposure to various chemical
toxins during service. With regard to in-service episodes of
acute bronchitis, the December 2009 VA clinician noted that
chronic bronchitis, emphysema, and COPD are not shown to be
clinically caused by or related to acute infection, including
acute bronchitis. As before, the Board finds the conclusions
of the December 2009 VA clinician to be of significant
probative value because they are based on a complete review
of his claims file and are accompanied by a rationale which
reflects application of medical principles to the specific
facts found in the record. See Nieves-Rodriguez, 22 Vet.
App. at 304; see also Hayes, 5 Vet. App. at 69-70.
Although the appellant has not asserted any other theory of
service connection for the cause of the Veteran's death, the
Board notes that medical records reflect that the Veteran had
a nearly forty-year history of cigarette use which
encompassed his entire period of active duty service. E.g.,
VA Examination Report dated in December 1997 (the Veteran
reported a tobacco history dating from 1940 to 1979). There
is no medical opinion directly linking the Veteran's
COPD/chronic bronchitis/emphysema to tobacco use; however,
treating physicians consistently note the Veteran's long
history of cigarette smoking, thereby suggesting that such
behavior is a risk factor or potential etiology for this
disease. Similarly, the December 2009 VA opinion indicates
that chronic smokers often "go on to develop chronic
bronchitis (COPD) and/or emphysema (COPD)."
Yet, despite competent evidence of in-service tobacco use and
evidence indicating the possibility that COPD may be related
to tobacco use, any claim for service connection on such
basis must be denied as a matter of law. Applicable VA law
and regulations expressly prohibit service connection for any
disability resulting from injury or disease attributable to
the use of tobacco products for any claims filed on or after
June 9, 1998. 38 U.S.C.A. § 1103 (West 2002); 38 C.F.R. §
3.300 (2009). The appellant's claim was not filed until
December 2006. Thus, the law prohibits service connection
for the cause of the Veteran's death based upon a theory that
such death was in some way related to the use of tobacco
products during service. See id.
The remaining evidence of record does not contain any
information that suggests the Veteran's contributory cause of
death, COPD, had its origins in service. Similarly, none of
the remaining evidence indicates that there is any causal
relationship between service-connected calcified granuloma of
the lung and the COPD and/or respiratory distress which
contributed to the cause of his death. In sum, there is a
lack of in-service evidence of COPD, an absence of any
assertion of problems and/or complaints for a number of years
post-service, and no competent evidence linking the Veteran's
post-service COPD to his military service, to include
multiple types of exposure to various chemicals. Under these
circumstances, a preponderance of the evidence is against
service connection for COPD, and thus, the cause of the
Veteran's death.
In reaching the above conclusion, the benefit of the doubt
doctrine was considered. However, this doctrine is not for
application as a preponderance of the evidence is against
this claim. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1
Vet. App. 49 (1990).
ORDER
Entitlement to service connection for the cause of the
Veteran's death is denied.
____________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs